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The indiscriminate collection of a private copying levy on
the first sale of recording media may be compatible with EU law, the European Court of Justice ruled on Thursday, in a case Amazon.com had fought.

Austro-Mechana, an Austrian copyright collecting society, brought an action against Amazon before the Handelsgericht Wien (Commercial Court, Vienna, Austria) for the payment of the blank cassette levy for recording media sold in Austria from 2002 to 2004. It claimed an amount of €1856 275 for the first half of 2004 and sought an order requiring Amazon to provide the accounting data necessary for it to quantify its claim for payment for the remainder of that period.

The Handelsgericht Wien granted the application for an order to produce accounts and reserved its decision on the claim for payment. That judgment was upheld on appeal. Amazon, which is of the view that the Austrian blank cassette levy is, for various reasons, contrary to EU law, brought the matter before the Oberster Gerichtshof
(Supreme Court, Austria). That court seeked a ruling from the Court of Justice on the interpretation of the relevant provisions of EU law.

In a ruling published on Thursday, the EU Court of Justice said EU law does not allow the private copying levy to be collected in cases where the intended use is clearly not the making of private copies.

"However, under certain conditions, EU law does not preclude such a system of a general levy with the option of reimbursement in cases where the intended use is not the making of private copies," it added.

The ruling does not decide the dispute, which is still before the Austrian supreme court, but does become binding on other national courts handling a similar issue.

Austria's supreme court now has to verify whether practical difficulties justify such a system and "whether the right to reimbursement is effective and does not make repayment of the levy paid excessively difficult".

It allowed the "rebuttable presumption" that individuals are using recording media for private purposes on two conditions: practical difficulties in determining whether the use is private must warrant such a presumption, and the presumption must not trigger the levy in cases where media are clearly used for non-private purposes.